UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed by the Registrant
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Filed by a Party other than the Registrant
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2)
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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TRANSFORMA ACQUISITION GROUP INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the
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Proposed maximum aggregate value of transaction:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Form, Schedule or Registration Statement No.:
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Date Filed:
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TRANSFORMA
ACQUISITION GROUP INC.
747 Third Avenue,
38
th
Floor
New York, NY 10017
To the stockholders of Transforma Acquisition Group Inc.:
You are cordially invited to attend a special meeting of
stockholders of Transforma Acquisition Group Inc. (the
Company) to be held on December 22, 2008. At
this meeting, you will be asked to approve the dissolution and
Plan of Liquidation of the Company, as contemplated by the
Companys certificate of incorporation, since the Company
will not be able to complete an initial business combination
within the required time period for it to do so. Upon
dissolution, the Company will, pursuant to a Plan of
Liquidation, discharge its liabilities, wind up its affairs and
distribute to its stockholders who own shares of the
Companys common stock issued as part of the units sold in
the Companys initial public offering, who we refer to as
the public stockholders, their respective pro rata
portion of the trust account in which the net proceeds of the
Companys initial public offering were deposited (the
Trust Account), as contemplated by the
Companys certificate of incorporation and the
Companys initial public offering prospectus. The record
date for the special meeting is December 1, 2008. Record
holders of the Companys common stock at the close of
business on the record date are entitled to vote or have their
votes cast at the special meeting.
This meeting is particularly significant because stockholders
must approve the Companys dissolution and liquidation in
order for the Company to be authorized to distribute the
proceeds held in the trust account to the Companys public
stockholders. It is important that you vote your shares at this
special meeting.
The Company was incorporated in Delaware on July 19, 2006
as a blank check company formed for the purpose of acquiring one
or more assets or control of one or more operating businesses in
the technology, media or telecommunications industries through a
merger, capital stock exchange, stock purchase, asset
acquisition or other similar business combination. A
registration statement for the initial public offering was
declared effective on December 19, 2006. On
December 26, 2006, the Company sold 12,500,000 units
in its initial public offering, with each unit consisting of one
share of common stock, $0.0001 par value per share, and one
warrant. Each warrant entitled the holder to purchase one share
of Company common stock at an exercise price of $5.50 per share
subject to the terms of the warrant agreement. The units began
public trading on December 20, 2006, and the Companys
common stock and warrants started trading separately on
January 5, 2007. Prior to the closing of the initial public
offering, the initial stockholders (as defined below) purchased
3,000,000 warrants, each of which entitled the holder to
purchase one share of Company common stock at $5.50 per share.
These warrants were sold for $1.00 per warrant, generating gross
proceeds of $3.0 million for the Company. Proceeds of
$98,500,000 from the initial public offering and the sale of
warrants were placed in a trust account to be used in connection
with a business combination or to be returned to the
public stockholders if an initial business combination was not
completed within 18 months from the consummation of the
initial public offering, or within 24 months if a letter of
intent, agreement in principle or definitive agreement relating
to a business combination was executed by the Company within
such
18-month
period, all as set forth in the Companys certificate of
incorporation. The Companys board of directors (the
Board of Directors or Board) is now
proposing the dissolution and Plan of Liquidation because the
Company will not consummate a business combination within the
required time frame.
The Plan of Liquidation included as
Annex A
to the
enclosed proxy statement provides for the discharge of the
Companys liabilities and the winding up of its affairs,
including distribution to the public stockholders of the
principal and accumulated interest (net of any income tax or
other tax obligations relating to the income from the assets in
the Trust Account) in the Trust Account (including the
deferred portion of the underwriters discount held in the
Trust Account following the consummation of the
Companys initial public offering). The Companys
stockholders who purchased an aggregate of 3,124,997 shares
of common stock issued prior to the Companys initial
public offering, which includes Larry J. Lenhart, Daniel L.
Burstein, Samuel L. Schwerin, Jon Lambert, John Sculley, Gordon
E. Eubanks, Jr. Dale Kutnick, S&B Investment
Management Group, LLC and Edward Fenster, who we refer to
collectively as the initial stockholders, have
waived their interest in any such distribution from the
Trust Account and will not receive any of it.
Stockholder approval of the Companys dissolution is
required by Delaware law, under which the Company is organized.
Stockholder approval of the Plan of Liquidation is designed to
comply with relevant provisions of U.S. federal income tax
laws. The affirmative vote of a majority of the Companys
common stock outstanding will be required to approve the
dissolution and Plan of Liquidation. Our Board of Directors has
unanimously approved
the Companys dissolution, deems it advisable and
recommends that you approve the dissolution and Plan of
Liquidation. The initial stockholders have advised the Company
that they support the Companys dissolution, and they have
agreed to vote in favor of its approval pursuant to agreements
entered into in connection with our initial public offering. Our
Board intends to approve the Plan of Liquidation, as required by
Delaware law, immediately following stockholder approval of the
dissolution.
As of November 30, 2008, the Company had accrued and unpaid
liabilities of approximately $ ,
and cash outside the Trust Account of approximately
$ . The Company currently has no
accrued and unpaid income or other tax obligations relating to
the income from the assets in the Trust Account.
The initial stockholders have agreed to indemnify and hold
harmless the Company, on a joint and several basis with all
other initial stockholders, against any and all loss, liability,
claims, damage and expense whatsoever to which the Company may
become subject as a result of (i) any claim by any vendor
or service provider who is owed money by the Company for
services rendered or products sold to the Company, or
(ii) any claim by any acquisition target, but in each case
only to the extent (a) such vendor, service provider, or
acquisition target, has not executed a waiver of rights or
claims to the Trust Account, and (b) necessary to
ensure that any such loss, liability, damage or expense does not
reduce the amount of funds in the Trust Account (or, in the
event that such claim arises after the distribution of the
Trust Account, to the extent necessary to ensure that the
Companys public stockholders are not liable for any amount
of such loss, liability, claim, damage or expense). The initial
stockholders indemnification obligations do not apply to
claims under the Companys indemnification of the
underwriters of its initial public offering against certain
liabilities, including liabilities under the Securities Act of
1933. In the event the Companys assets held outside the
Trust Account are insufficient to pay the costs and
expenses of dissolution and liquidation of the Company, the
initial stockholders have agreed to indemnify and hold harmless
the Company, on a joint and several basis with all other initial
stockholders, against any additional costs and expenses of
dissolution and liquidation, except for any special, indirect or
consequential costs or expenses, such as litigation pertaining
to the Companys dissolution and liquidation.
The initial stockholders are expected to assume the
approximately $ of liabilities
outstanding as of November 30, 2008, which amount will be
reduced to the extent the Company uses assets outside of the
Trust Account to satisfy the liabilities.
The initial stockholders have confirmed to the Company that they
expect to meet their obligations, and are currently negotiating
with the Companys creditors regarding satisfaction of
those liabilities, which they expect to complete prior to the
special meeting. If they fail to meet their obligations,
however, under Delaware law, public stockholders could be
required to return a portion of the distributions they receive
pursuant to the Plan of Liquidation up to their pro rata share
of the liabilities not so discharged, but not in excess of the
total amounts received by them from the Company. Since the
initial stockholders obligations are not collateralized or
guaranteed, the Company cannot assure you that the initial
stockholders will perform their obligations, or that public
stockholders would be able to enforce these obligations.
After careful consideration of all relevant factors, the
Companys Board of Directors has unanimously determined
that the Companys dissolution is fair to and in the best
interests of the Company and its stockholders, has declared it
advisable, and recommends that you vote or give instruction to
vote
FOR
the dissolution and Plan of
Liquidation.
The Board also recommends that you vote or give instruction to
vote
FOR
adoption of the proposal to
authorize the Companys Board of Directors or its Chairman,
in their discretion, to adjourn or postpone the special meeting
for further solicitation of proxies, if there are not sufficient
votes at the originally scheduled time of the special meeting to
approve the Companys dissolution.
Enclosed is a notice of special meeting and proxy statement
containing detailed information concerning the Plan of
Liquidation and the special meeting.
Whether or not you plan
to attend the special meeting, we urge you to read this material
carefully and vote your shares.
I look forward to seeing you at the meeting.
Sincerely,
Larry J. Lenhart
President and Chief Executive Officer
TRANSFORMA
ACQUISITION GROUP INC.
747 Third Avenue,
38
th
Floor
New York, NY 10017
NOTICE OF SPECIAL MEETING OF
STOCKHOLDERS
TO BE HELD DECEMBER 22,
2008
To the stockholders of Transforma Acquisition Group Inc.:
NOTICE IS HEREBY GIVEN that a special meeting of stockholders of
Transforma Acquisition Group Inc., a Delaware corporation (the
Company), will be held at 10:00 a.m., Pacific
Time, on December 22, 2008, at the offices of
Fenwick & West LLP, 801 California Street, Mountain
View, CA 94041, for the sole purpose of considering and voting
upon the following proposals:
1. Dissolution and Plan of Liquidation Proposal
to approve the dissolution of the Company and the proposed Plan
of Liquidation in, or substantially in, the form of
Annex A
to the accompanying proxy statement; and
2. Adjournment Proposal to authorize the
Companys Board of Directors or its Chairman, in their
discretion, to adjourn or postpone the special meeting for
further solicitation of proxies, if there are not sufficient
votes at the originally scheduled time of the special meeting to
approve the foregoing proposal.
Under Delaware law and the Companys bylaws, no other
business may be transacted at the meeting.
The Board of Directors has fixed the close of business on
December 1, 2008 as the date for determining the Company
stockholders entitled to receive notice of and vote at the
special meeting and any adjournment thereof. Only holders of
record of the Companys common stock on that record date
are entitled to have their votes counted at the special meeting
or any adjournment. A list of stockholders entitled to vote at
the special meeting will be available for inspection at the
offices of the Company and at the special meeting.
Your vote is important.
Please sign, date and
return your proxy card as soon as possible to make sure that
your shares are represented at the special meeting. If you are a
stockholder of record, you may also cast your vote in person at
the special meeting. If your shares are held in an account at a
brokerage firm or bank, you must instruct your broker or bank
how to vote your shares, or you may cast your vote in person at
the special meeting by presenting a proxy obtained from your
brokerage firm or bank.
Your failure to vote or instruct your
broker or bank how to vote will have the same effect as voting
against the dissolution and plan of liquidation.
THE COMPANYS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT YOU VOTE FOR APPROVAL OF EACH PROPOSAL.
By Order of the Board of Directors,
Larry J. Lenhart
President and Chief Executive Officer
,
2008
TRANSFORMA
ACQUISITION GROUP INC.
PROXY STATEMENT FOR SPECIAL
MEETING OF STOCKHOLDERS
A special meeting of stockholders of Transforma Acquisition
Group Inc. (the Company) will be held at
10:00 a.m., Pacific Time, on December 22, 2008, at the
offices of Fenwick & West LLP, 801 California Street,
Mountain View, CA 94041. At this important meeting, you will be
asked to consider and vote upon the following proposals:
1. Dissolution and Plan of Liquidation proposal
to approve the dissolution of the Company and the proposed Plan
of Liquidation in, or substantially in, the form of
Annex A
to this proxy statement; and
2. Adjournment proposal to authorize the
Companys Board of Directors or its Chairman, in their
discretion, to adjourn or postpone the special meeting for
further solicitation of proxies, if there are not sufficient
votes at the originally scheduled time of the special meeting to
approve the foregoing proposal.
Under Delaware law and the Companys bylaws, no other
business may be transacted at the meeting.
This proxy statement contains important information about the
meeting and the proposals. Please read it carefully and vote
your shares.
The record date for the special meeting is
December 1, 2008. Record holders of the Companys
common stock at the close of business on the record date are
entitled to vote or have their votes cast at the special
meeting. On the record date, there were 15,624,997 shares
of the Companys common stock outstanding, of which
12,500,000 were issued in the Companys initial public
offering and 3,124,997 were issued to the Companys initial
stockholders, including all of its directors and officers,
before the initial public offering (who we refer to as the
initial stockholders), and each of which entitles
its holder to one vote per proposal at the special meeting. The
Companys warrants do not have voting rights.
This proxy statement is
dated ,
2008 and is first being mailed to stockholders on or
about ,
2008.
TABLE OF
CONTENTS
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A-1
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i
SUMMARY
OF THE PLAN OF LIQUIDATION
At the special meeting, you will be asked to approve the
dissolution and Plan of Liquidation of the Company, as
contemplated by the Companys certificate of incorporation.
The following describes briefly the material terms of the
Companys proposed dissolution and Plan of Liquidation.
This information is provided to assist stockholders in reviewing
this proxy statement and considering the proposed dissolution
and Plan of Liquidation, but does not include all of the
information contained herein and may not contain all of the
information that is important to you. To understand fully the
dissolution and Plan of Liquidation being submitted for
stockholder approval, you should carefully read this proxy
statement, including the accompanying copy of the Plan of
Liquidation attached as
Annex A
, in its entirety.
If the dissolution is approved, we will:
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file a certificate of dissolution with the Delaware Secretary of
State;
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adopt a Plan of Liquidation in, or substantially in, the form of
Annex A
to this proxy statement by board action in
compliance with Delaware law;
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establish a contingency reserve for the satisfaction of any
known or potential liabilities, consisting of the
indemnification obligations of the initial stockholders provided
to the Company at the time of its initial public
offering; and
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pay or adequately provide for the payment of our liabilities,
including (i) any existing liabilities for taxes and to
providers of professional and other services, (ii) expenses
of the dissolution and liquidation, and (iii) the
distribution of proceeds of the Trust Account to the
Companys public stockholders in accordance with the
Companys certificate of incorporation.
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We expect to make a liquidating distribution to the public
stockholders from the Trust Account as soon as practicable
following the adoption of the Plan of Liquidation by our Board
of Directors, which in turn will follow the filing of our
certificate of dissolution with the Delaware Secretary of State
and stockholder approval of the dissolution and Plan of
Liquidation. We expect to file our 2008 federal income tax
return after the initial liquidating distribution, and to
distribute the expected federal income tax refund in one or more
additional liquidating distributions. We are currently
negotiating with the Companys creditors regarding the
satisfaction of the Companys other liabilities, which we
expect to accomplish, concurrently with the liquidating
distributions, through payments made from our remaining cash
reserves.
As a result of the Companys liquidation, for
U.S. federal income tax purposes, stockholders will
recognize a gain or loss equal to the difference between
(i) the value of cash or other property distributed to them
(including distributions to any liquidating trust), less any
known liabilities assumed by the stockholder or to which the
distributed property is subject, and (ii) their tax basis
in shares of the Companys common stock. You should consult
your tax advisor as to the tax effects of the Plan of
Liquidation and the Companys dissolution in your
particular circumstances.
Under Delaware law, stockholders will not have dissenters
rights in connection with the dissolution and Plan of
Liquidation.
Under Delaware law, if we distribute to public stockholders the
proceeds currently held in the Trust Account, but fail to
pay or make adequate provision for our liabilities, each of the
Companys public stockholders could be held liable for
amounts due to the Companys creditors to the extent of the
stockholders pro rata share of the liabilities not so
discharged, but not in excess of the total amount received by
such stockholder.
As of November 30, 2008, the Company had accrued and unpaid
liabilities of approximately $ ,
and cash outside the Trust Account of approximately
$ . The Company currently has no
accrued and unpaid income or other tax obligations relating to
the income from the assets in the Trust Account.
The initial stockholders have agreed to indemnify and hold
harmless the Company, on a joint and several basis with all
other initial stockholders against any and all loss, liability,
claims, damage and expense whatsoever to which the Company may
become subject as a result of (i) any claim by any vendor
or service provider who is owed money by the Company for
services rendered or products sold to the Company, or
(ii) any claim by any acquisition target, but in
1
each case only to the extent (a) such vendor, service
provider, or acquisition target, has not executed a waiver of
rights or claims to the Trust Account, and
(b) necessary to ensure that any such loss, liability,
damage or expense does not reduce the amount of funds in the
Trust Account (or, in the event that such claim arises
after the distribution of the Trust Account, to the extent
necessary to ensure that the Companys public stockholders
are not liable for any amount of such loss, liability, claim,
damage or expense). The initial stockholders
indemnification obligations do not apply to claims under the
Companys indemnification of the underwriters of its
initial public offering against certain liabilities, including
liabilities under the Securities Act of 1933. In the event the
Companys assets held outside the Trust Account are
insufficient to pay the costs and expenses of dissolution and
liquidation of the Company, the initial stockholders have agreed
to indemnify and hold harmless the Company, on a joint and
several basis with all other initial stockholders, against any
additional costs and expenses of dissolution and liquidation,
except for any special, indirect or consequential costs or
expenses, such as litigation pertaining to the Companys
dissolution and liquidation.
The initial stockholders are expected to assume the
approximately $ of liabilities
outstanding as of November 30, 2008, which amount will be
reduced to the extent the Company has assets outside of the
Trust Account that are used to satisfy such liabilities.
The initial stockholders have confirmed to the Company that they
expect to meet these obligations and are currently negotiating
with the Companys creditors regarding satisfaction of the
Companys liabilities, which they expect to complete prior
to the special meeting. If they fail to meet their obligations,
however, under Delaware law, the Companys public
stockholders could be required to return a portion of the
distributions they receive pursuant to the Plan of Liquidation
up to their pro rata share of the liabilities not so discharged,
but not in excess of the total amounts received by them from the
Company. Since the initial stockholders obligations are
not collateralized or guaranteed, the Company cannot assure you
that the initial stockholders perform their obligations, or that
the public stockholders would be able to enforce these
obligations.
If our stockholders do not vote to approve our dissolution and
Plan of Liquidation, our Board of Directors will explore what,
if any, alternatives are available for the future of the
Company. The Board believes, however, that there are no viable
alternatives to the Companys dissolution and liquidation
pursuant to the Plan of Liquidation.
After careful consideration of all relevant factors, the
Companys Board of Directors has unanimously determined
that the dissolution and Plan of Liquidation of the Company are
advisable, and are fair to and in the best interests of the
Company and its stockholders. The Board has unanimously approved
such dissolution and Plan of Liquidation and recommends that you
approve them.
CAUTION
REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement contains forward-looking statements,
including statements concerning our expectations, beliefs,
plans, objectives and assumptions about the value of the
Companys net assets, the anticipated liquidation value per
share of the Companys common stock, and the timing and
amounts of any distributions of liquidation proceeds to
stockholders. These statements are often, but not always, made
through the use of words or phrases such as believe,
will likely result, expect, will
continue, anticipate, estimate,
intend, plan, project,
would and similar words and phrases. The Company
intends such forward-looking statements to be covered by the
safe harbor provisions for forward-looking statements contained
in the Private Securities Litigation Reform Act of 1995, and
includes this statement for purposes of invoking those
provisions. Forward-looking statements involve known and unknown
risks, uncertainties and other important factors that could
cause the Companys actual results, performance or
achievements, or other subjects of such statements, to differ
materially from the Companys expectations regarding such
matters expressed or implied by those statements. These factors
include the risks that we may incur additional liabilities, that
the amount required for the settlement of our liabilities could
be higher than expected, and that we may not meet the
anticipated timing for the dissolution or the consummation of
the Plan of Liquidation, as well as the other factors set forth
under the caption Risk Factors and elsewhere in this
proxy statement. All of such factors could reduce the amount
available for, or affect the timing of, distributions to our
stockholders, and could cause other actual outcomes to differ
materially from those expressed in any forward-looking
statements made in this proxy statement. You should therefore
not place undue reliance on any such forward-looking statements.
Although the Company believes that the expectations reflected in
the forward-looking statements contained in this proxy statement
are reasonable, we cannot guarantee future events or results.
Except as required by law, the Company undertakes no obligation
to update publicly any forward-looking statements for any
reason, even if new information becomes available or other
events occur.
2
QUESTIONS
AND ANSWERS ABOUT THE SPECIAL
MEETING AND THE PLAN
These questions and answers are only summaries of the matters
they discuss. Please read this entire proxy statement.
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Q.
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What is being voted on at the special meeting?
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A.
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You are being asked to vote upon proposals to:
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Approve the dissolution of the Company and the
proposed Plan of Liquidation in, or substantially in, the form
of
Annex A
to this proxy statement, which is
sometimes referred to as the dissolution proposal; and
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Authorize the Companys Board of Directors or
its Chairman, in their discretion, to adjourn or postpone the
special meeting for further solicitation of proxies, if there
are not sufficient votes at the originally scheduled time of the
special meeting to approve the dissolution proposal, which is
sometimes referred to as the adjournment proposal. Under
Delaware law and the Companys bylaws, no other business
may be transacted at the special meeting.
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Q.
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Why is the Company proposing the dissolution and Plan of
Liquidation?
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A.
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The Company was incorporated in Delaware on July 19, 2006
as a blank check company formed for the purpose of acquiring one
or more assets or control of one or more operating businesses in
the technology, media or telecommunications industries through a
merger, capital stock exchange, stock purchase, asset
acquisition or other similar business combination. The Company
received net proceeds of $94,780,000 from its initial public
offering consummated on December 26, 2006, and the sale of
warrants to the initial stockholders in a private placement. The
net proceeds of $94,780,000 (plus an additional $3,720,000
attributable to a deferred underwriters discount) were
placed in a trust account to be used in connection with a
business combination or to be returned to the Companys
public stockholders if an initial business combination was not
completed within 18 months from the consummation of the
initial public offering, or within 24 months if a letter of
intent, agreement in principle or definitive agreement relating
to a business combination was executed by the Company within
such
18-month
period, all as set forth in the Companys certificate of
incorporation. The Companys Board of Directors is now
proposing the dissolution and Plan of Liquidation because the
Company will not consummate a business combination within the
required time frame, and the Company is now required to dissolve
and liquidate as provided in its certificate of incorporation.
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Q.
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How will the liquidation of the Company be accomplished?
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A.
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The liquidation of the Company will be effected pursuant to the
terms of the Plan of Liquidation. The Plan of Liquidation
provides for the discharge of the Companys liabilities and
the winding up of its affairs, including distribution to the
public stockholders of the principal and accumulated interest,
net of any income tax or other tax obligations relating to the
income from the assets in the Trust Account (including the
amount representing the deferred portion of the
underwriters fee held in the Trust Account following
the consummation of the initial public offering). Larry J.
Lenhart, Daniel L. Burstein, Samuel L. Schwerin, Jon Lambert,
John Sculley, Gordon E. Eubanks, Jr., Dale Kutnick, S&B
Investment Management Group, LLC and Edward Fenster, who
purchased an aggregate of 3,124,997 shares of Company
common stock prior to the Companys initial public offering
and who we refer to as the initial stockholders,
have waived their interests in any such distribution and will
receive none of it. Stockholder approval of the Companys
dissolution is required by Delaware law, under which the Company
is organized. Stockholder approval of the Plan of Liquidation is
designed to comply with relevant provisions of U.S. federal
income tax laws. The affirmative vote of a majority of the
Companys common stock outstanding will be required to
approve the dissolution and Plan of Liquidation. Our Board of
Directors has unanimously approved the Companys
dissolution, deems it advisable and recommends that you approve
the dissolution and Plan of Liquidation. The Board of Directors
intends to approve the Plan of Liquidation, as required by
Delaware law, immediately following stockholder approval of the
dissolution and Plan of Liquidation.
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3
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Q.
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How do the Companys initial stockholders intend to vote
their shares at the special meeting?
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A.
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The Companys initial stockholders have advised the Company
that they support the dissolution and Plan of Liquidation and
pursuant to agreements entered into in connection with our
initial public offering, they have agreed to vote for their
approval, together with approval of the adjournment proposal.
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Q.
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What vote is required to adopt the proposals?
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A.
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Approval of the Companys dissolution and Plan of
Liquidation will require the affirmative vote of holders of a
majority of the Companys common stock outstanding.
Approval of the adjournment proposal requires the affirmative
vote of holders of a majority of the Companys common stock
that are represented in person or by proxy and are entitled to
vote at the special meeting.
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Q.
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Why should I vote for the proposals?
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A.
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Stockholder approval of the Companys dissolution is
required by Delaware law and stockholder approval of the Plan of
Liquidation is designed to comply with relevant provisions of
U.S. federal income tax laws. If the dissolution and Plan of
Liquidation is not approved, the Company will not be authorized
to dissolve and liquidate, and will not be authorized to
distribute the funds held in the Trust Account to the
public stockholders.
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Q.
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Who is entitled to receive the liquidating distributions?
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A.
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The record date for the holders of Company common stock entitled
to receive liquidating distributions will be the close of
business on the date of the filing of the certificate of
dissolution of the Company. You must continue to hold shares
through such date to be entitled to receive a pro rata portion
of the Trust Account.
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Q.
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How much will I be entitled to receive if the dissolution and
Plan of Liquidation is approved?
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A.
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As of November 30, 2008, the Company had approximately
$ held in the Trust Account.
The Company currently has no accrued and unpaid income tax or
other tax obligations relating to the income from the assets in
the Trust Account. If a liquidation were to have occurred
on such date, the Company estimates that the entire amount of
approximately $ , or approximately
$ per share, held in the
Trust Account would have been distributed to the public
stockholders. However, we cannot assure you that the amount
actually available for distribution will not be reduced, whether
as a result of the claims of additional creditors, the failure
of the initial stockholders to satisfy their indemnification
obligations, or otherwise. See Risk Factors.
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Q.
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What happens if the dissolution and Plan of Liquidation is
not approved?
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A.
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Under the Companys certificate of incorporation, the
Company must be dissolved as promptly as practicable after
December 26, 2008 because the Company will not have
consummated a qualified business combination before such date.
If the dissolution and Plan of Liquidation are not approved, the
Company will not be authorized to dissolve and liquidate, and
will not be authorized to distribute the funds held in the
Trust Account to the public stockholders. If sufficient
votes to approve the dissolution and Plan of Liquidation are not
available at the special meeting, or if a quorum is not present
in person or by proxy, our Board of Directors or our Chairman
may seek to adjourn or postpone the meeting to continue to seek
such approval.
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Q.
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If the dissolution and Plan of Liquidation are approved, what
happens next?
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A.
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We will:
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file a certificate of dissolution with the Delaware
Secretary of State;
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adopt the Plan of Liquidation by Board action in
compliance with Delaware law;
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conclude our negotiations with creditors and pay or
adequately provide for the payment of the Companys
liabilities;
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distribute the proceeds of the Trust Account to
the public stockholders, less any income or other tax
obligations relating to the income from the assets in the
Trust Account; and
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otherwise effectuate the Plan of Liquidation.
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4
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Q.
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If I am not going to attend the special meeting in person,
should I return my proxy card instead?
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A.
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Yes. After carefully reading and considering the information in
this proxy statement, please complete and sign your proxy card.
Then return it in the enclosed envelope as soon as possible, so
that your shares may be represented at the special meeting.
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Q.
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What will happen if I abstain from voting or fail to vote at
the special meeting?
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A.
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If you do not vote or do not instruct your broker how to vote,
it will have the same effect as voting against the dissolution
and Plan of Liquidation proposal but will have no effect on the
adjournment proposal, assuming that a quorum for the special
meeting is present. If you abstain from voting, it
will have the same effect as voting against each of the
dissolution and Plan of Liquidation proposal and the adjournment
proposal.
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Q.
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What do I do if I want to change my vote prior to the special
meeting?
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A.
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If you give a proxy, you may revoke it at any time before it is
exercised by doing any one of the following: (i) sending
another proxy card with a later date; (ii) notifying Larry
J. Lenhart, the Companys President and Chief Executive
Officer, in writing at the address of the Companys
corporate headquarters, prior to the special meeting that you
have revoked your proxy; or (iii) attending the special
meeting in person, revoking your proxy, and voting in person.
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Q.
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If my shares are held in street name by my
broker, will my broker vote them for me?
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A.
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No. Your broker can vote your shares only if you provide
instructions on how to vote. You should instruct your broker to
vote your shares, following the directions provided by your
broker.
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Q.
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Can I still sell my shares?
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A.
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Yes, you may sell your shares at this time. If you sell shares
before, or purchase shares after, the record date for the
special meeting, you will not be entitled to vote those shares
at the special meeting. In addition, you will only be entitled
to receive a pro rata portion of the Trust Account with
respect to those shares held by you as of the record date for
the distribution, which will be the date of the filing of the
certification of dissolution of the Company. Delaware law
restricts transfers of our common stock once a certificate of
dissolution has been filed with the Delaware Secretary of State,
which we expect will occur promptly after approval of the
Companys dissolution by stockholders at the special
meeting. Thereafter and until trading on the NYSE Alternext is
halted through termination of registration or delisting, we
believe that any trades of the Companys shares will be
tracked and marked with a due bill by The Depository
Trust Company.
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Q.
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What will happen to my warrants in connection with the
dissolution and liquidation of the Company?
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A.
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The Companys warrants will expire and become worthless
upon dissolution of the Company. No distributions will be made
to warrant holders pursuant to the Plan of Liquidation.
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Q.
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Who can help answer my questions?
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A.
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If you have questions, you may write or call Transforma
Acquisition Group Inc., 747 Third Avenue,
38
th
Floor, New York, NY 10017,
(646) 521-7805,
Attention: Larry J. Lenhart, President and Chief Executive
Officer.
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5
THE
SPECIAL MEETING
The Company is furnishing this proxy statement to its
stockholders as part of the solicitation of proxies by the Board
of Directors for use at the special meeting in connection with
the proposed dissolution and Plan of Liquidation of the Company.
This proxy statement provides you with information you need to
know to vote or instruct your vote to be cast at the special
meeting.
Date,
Time and Place
We will hold the special meeting at 10:00 a.m. Pacific
Time, on December 22, 2008, at the offices of
Fenwick & West LLP, 801 California Street, Mountain
View, CA 94041, to vote on the proposals to approve the
Companys dissolution and Plan of Liquidation and the
adjournment proposal.
Purpose
of the Special Meeting
At the special meeting, holders of the Companys common
stock will be asked to approve the Companys dissolution
and Plan of Liquidation and the adjournment proposal.
Recommendation
of the Companys Board of Directors
The members of the Companys Board of Directors
(i) have unanimously determined that the proposed
dissolution and Plan of Liquidation of the Company are
advisable, and are fair to and in the best interests of the
Company and its stockholders, (ii) have unanimously
approved the dissolution and Plan of Liquidation and
(iii) unanimously recommend that the Companys
stockholders vote
FOR
the dissolution and
Plan of Liquidation.
The Board of Directors also recommends that you vote or give
instruction to vote
FOR
adoption of the
adjournment proposal to permit the Companys Board of
Directors or its Chairman, in their discretion, to adjourn or
postpone the special meeting for further solicitation of
proxies, if there are not sufficient votes at the originally
scheduled time of the special meeting to approve the dissolution
proposal.
The special meeting has been called only to consider approval of
the dissolution and Plan of Liquidation proposal and the
adjournment proposal. Under Delaware law and the Companys
bylaws, no other business may be transacted at the special
meeting.
Record
Date; Who Is Entitled to Vote
The record date for the special meeting is
December 1, 2008. Record holders of the Companys
common stock at the close of business on the record date are
entitled to vote or have their votes cast at the special
meeting. On the record date, there were 15,624,997 shares
of the Companys common stock outstanding, of which
12,500,000 were originally issued in the Companys initial
public offering and 3,124,997 were issued prior to our initial
public offering and are held by our initial stockholders. Each
share of the Companys common stock entitles its holder to
one vote per proposal at the special meeting. The Companys
warrants do not have voting rights.
The initial stockholders have advised the Company that they will
vote
FOR
the Companys dissolution and
Plan of Liquidation and the adjournment proposal.
Quorum;
Vote Required
A majority of the Companys common stock outstanding,
present in person or by proxy, will be required to constitute a
quorum for the transaction of business at the special meeting,
other than adjournment to seek a quorum. Approval of the
dissolution and Plan of Liquidation proposal will require the
affirmative vote of holders of a majority of the Companys
common stock outstanding. Approval of the adjournment proposal
will require the affirmative vote of holders of a majority of
the Companys common stock present or represented by proxy
at the special meeting and entitled to vote.
6
ABSTAINING FROM VOTING OR NOT VOTING, EITHER IN PERSON OR BY
PROXY OR BY VOTING INSTRUCTION, WILL HAVE THE SAME EFFECT AS A
VOTE AGAINST THE DISSOLUTION AND PLAN OF LIQUIDATION
PROPOSAL.
Voting
Your Shares
Each share of common stock that you own in your name entitles
you to one vote per proposal. Your proxy card shows the number
of shares you own.
There are two ways to vote your shares of the Companys
common stock at the special meeting:
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You can vote by signing and returning the enclosed proxy
card.
If you vote by proxy card, your
proxies, whose names are listed on the proxy card,
will vote your shares as you instruct on the proxy card. If you
sign and return the proxy card, but do not give instructions on
how to vote your shares, your shares will be voted as
recommended by the Companys Board
FOR
the dissolution and Plan of Liquidation proposal and the
adjournment proposal. Votes received after a matter has been
voted upon at the special meeting will not be counted.
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You can attend the special meeting and vote in
person.
We will give you a ballot at the special
meeting. However, if your shares are held in the name of your
broker, bank or another nominee, you must present a proxy from
the broker, bank or other nominee. That is the only way we can
be sure that the broker, bank or nominee has not already voted
your shares.
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Adjournment
or Postponement
If the adjournment proposal is approved at the special meeting,
the Company may adjourn or postpone the special meeting if
necessary to solicit further proxies. In addition, the Company
may adjourn or postpone the special meeting as set forth in the
Companys certificate of incorporation or bylaws or as
otherwise permitted by law.
Who Can
Answer Your Questions About Voting Your Shares
If you have any questions about how to vote or direct a vote in
respect of your common stock, you may call Larry J. Lenhart, the
Companys President and Chief Executive Officer, at
(646) 521-7805.
No
Additional Matters May Be Presented at the Special
Meeting
The special meeting has been called only to consider the
adoption of the dissolution and Plan of Liquidation proposal and
the adjournment proposal. Under the Companys bylaws, other
than procedural matters incident to the conduct of the meeting,
no other matters may be considered at the special meeting if
they are not included in the notice of the special meeting.
Revoking
Your Proxy and Changing Your Vote
If you give a proxy, you may revoke it at any time before it is
exercised by doing any one of the following:
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You may send another proxy card with a later date;
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You may notify Larry J. Lenhart, the Companys President
and Chief Executive Officer, in writing before the special
meeting that you have revoked your proxy; or
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You may attend the special meeting, revoke your proxy, and vote
in person.
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If your shares are held in street name, consult your
broker for instructions on how to revoke your proxy or change
your vote. If an executed proxy card is returned by a broker or
bank holding shares that indicates that the broker or bank does
not have discretionary authority to vote on the proposals, the
shares will be considered present at the meeting for purposes of
determining the presence of a quorum, but will not be considered
to have been voted on the proposals. Your broker or bank will
vote your shares only if you provide instructions on how to vote
by following the information provided to you by your broker.
7
Abstentions
and Broker Non-Votes
If your broker holds your shares in its name and you do not give
the broker voting instructions, under the rules of the Stock
Exchange, your broker may not vote your shares on any of the
proposals to be considered at the special meeting. This is
referred to as a broker non-vote. Broker non-votes
are considered present for the purposes of establishing a quorum
for purposes of the special meeting. If you do not vote or do
not instruct your broker how to vote, it will have the same
effect as voting against the dissolution and Plan of Liquidation
proposal but it will have no effect on the adjournment proposal.
If you abstain from voting, it will have the same effect as
voting against each of the dissolution and Plan of Liquidation
proposal and the adjournment proposal.
No
Dissenters Rights.
Under Delaware law, stockholders are not entitled to
dissenters rights in connection with the Companys
dissolution and Plan of Liquidation.
Solicitation
Costs
The Company is soliciting proxies on behalf of the
Companys Board of Directors. This solicitation is being
made by mail but the Company and its directors, officers,
employees and consultants may also solicit proxies in person or
by telephone or other electronic means. These persons will not
be paid for doing this.
The Company has not hired a firm to assist in the proxy
solicitation process but may do so if it deems this assistance
desirable. The Company will pay all fees and expenses related to
the retention of any proxy solicitation firm.
The Company will ask banks, brokers and other institutions,
nominees and fiduciaries to forward its proxy materials to their
principals and to obtain their authority to execute proxies and
voting instructions. The Company will reimburse them for their
reasonable expenses.
Stock
Ownership
Information concerning the holdings of certain of the
Companys stockholders is set forth under Beneficial
Ownership of Securities.
8
RISK
FACTORS
You should carefully consider the following risk factors,
together with all of the other information included in this
proxy statement, before you decide whether to vote or instruct
your vote to be cast to adopt the dissolution and Plan of
Liquidation proposal and the adjournment proposal.
We may
not meet the anticipated timing for the dissolution and Plan of
Liquidation.
Promptly following the special meeting, if our stockholders
approve the Companys dissolution and Plan of Liquidation,
we intend to file a certificate of dissolution with the Delaware
Secretary of State and wind up our business promptly thereafter.
We expect that we will make the liquidation distribution of the
proceeds in the Trust Account to our public stockholders as
soon as practicable following the filing of our certificate of
dissolution with the Delaware Secretary of State after approval
of the dissolution by the stockholders. We do not expect that
there will be any additional assets remaining for distribution
to stockholders after payment, provision for payment or
compromise of our liabilities and obligations. There are a
number of factors that could delay our anticipated timetable,
including:
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delays in the payment, or arrangement for payment or compromise,
of our remaining liabilities or obligations;
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lawsuits or other claims asserted against us; and
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unanticipated legal, regulatory or administrative requirements.
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We may
not be able to settle all of our obligations to
creditors.
We have obligations to creditors. The Plan of Liquidation takes
into account all of our known obligations and our best estimate
of the amount reasonably required to satisfy them. As part of
the winding up process, we are in the process of settling these
obligations with our creditors. We cannot assure you that we
will be able to settle all of these obligations or that they can
be settled for the amounts we have estimated. If we are unable
to reach agreement with a creditor relating to an obligation,
that creditor may seek to collect it, including through
litigation. The initial stockholders have agreed to indemnify
and hold harmless the Company, on a joint and several basis with
all other initial stockholders against any and all loss,
liability, claims, damage and expense whatsoever to which the
Company may become subject as a result of (i) any claim by
any vendor or service provider who is owed money by the Company
for services rendered or products sold to the Company, or
(ii) any claim by any acquisition target, but in each case
only to the extent (a) such vendor, service provider, or
acquisition target, has not executed a waiver of rights or
claims to the Trust Account, and (b) necessary to
ensure that any such loss, liability, damage or expense does not
reduce the amount of funds in the Trust Account (or, in the
event that such claim arises after the distribution of the
Trust Account, to the extent necessary to ensure that the
Companys public stockholders are not liable for any amount
of such loss, liability, claim, damage or expense). The initial
stockholders indemnification obligations do not apply to
claims under the Companys indemnification of the
underwriters of its initial public offering against certain
liabilities, including liabilities under the Securities Act of
1933. In the event the Companys assets held outside the
Trust Account are insufficient to pay the costs and
expenses of dissolution and liquidation of the Company, the
initial stockholders have agreed to indemnify and hold harmless
the Company, on a joint and several basis with all other initial
stockholders, against any additional costs and expenses of
dissolution and liquidation, except for any special, indirect or
consequential costs or expenses, such as litigation pertaining
to the Companys dissolution and liquidation. If the
initial stockholders do not satisfy these obligations, such
creditors may seek to recover such claims from the
Companys stockholders within three years of the
Companys dissolution.
If our
reserves for payments to creditors are inadequate, each
stockholder may be liable to our creditors for a pro rata
portion of their claims up to the amount distributed to such
stockholder by us.
Pursuant to Delaware law, we will continue to exist for three
years after the dissolution becomes effective in order to
complete the winding up of our affairs. If we fail to provide
adequately for all our liabilities, each of our stockholders
could be liable for payment to our creditors of the
stockholders pro rata portion of such creditors
claims up to the amount distributed to such stockholder in the
liquidation.
9
We
cannot assure you that claims will not be made against the
Trust Account, the result of which could impair or delay
its distribution to the public stockholders.
The Company currently has little available funds outside the
Trust Account, and must make arrangements with vendors and
service providers with respect to any outstanding liabilities.
The Companys creditors may seek to satisfy their claims
from funds in the Trust Account if the initial stockholders
do not perform any required indemnification obligations. This
could further reduce a stockholders distribution from the
Trust Account, or delay stockholder distributions.
Recordation
of transfers of our common stock on our stock transfer books
will be restricted as of the date fixed by the Board for filing
the certificate of dissolution, and thereafter it generally will
not be possible for stockholders to change record ownership of
our stock.
After dissolution, Delaware law will prohibit transfers of
record of our common stock except by will, intestate succession
or operation of law. We believe, however, that after dissolution
any trades of shares of our common stock held in street
name will be tracked and marked with a due bill by The
Depository Trust Company.
Our
Board of Directors may delay implementation of the Plan of
Liquidation, even if dissolution is approved by our
stockholders.
Even if the Companys dissolution is approved by our
stockholders, our Board of Directors has reserved the right, in
its discretion, to delay implementation of the Plan of
Liquidation if it determines that doing so is in the best
interests of the Company and its stockholders. The Board is
currently unaware of any circumstances under which it would do
so.
If our
stockholders do not approve the dissolution and Plan of
Liquidation, no assurances can be given as to how or when, if
ever, amounts in the Trust Account will be distributed to our
stockholders.
The certificate of incorporation of the Company provides that
the Trust Account proceeds will be distributed to the
public stockholders upon the liquidation and dissolution of the
Company and Delaware law requires that the stockholders approve
such liquidation and dissolution. If the Companys
stockholders do not approve the dissolution and Plan of
Liquidation, the Company will not have the requisite legal
authority to distribute the Trust Account proceeds to
stockholders. In such case, no assurance can be given as to how
or when, if ever, such amounts will be distributed.
THE
DISSOLUTION AND PLAN OF LIQUIDATION PROPOSAL
Our Board of Directors is proposing the Companys
dissolution and Plan of Liquidation for approval by our
stockholders at the special meeting. The Board has unanimously
approved the Companys dissolution, declared it advisable
and directed that it be submitted for stockholder approval at
the special meeting. The Board has also approved the Plan of
Liquidation and directed that it be submitted for stockholder
approval, and, as required by Delaware law, intends to
re-approve it immediately following stockholder approval of the
dissolution and Plan of Liquidation and the filing of a
certificate of dissolution with the Delaware Secretary of State.
A copy of the Plan of Liquidation is attached as
Annex A
to this proxy statement.
After approval of the Companys dissolution, we anticipate
that our activities will be limited to actions we deem necessary
or appropriate to accomplish, among other things, the following:
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filing a certificate of dissolution with the Delaware Secretary
of State and, thereafter, remaining in existence as a
non-operating entity for three years;
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adopting a Plan of Liquidation in, or substantially in, the form
of
Annex A
to this proxy statement by Board action
in compliance with Delaware law;
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establishing a contingency reserve for the satisfaction of known
or potential liabilities, consisting of the indemnification
obligations of the initial stockholders provided to the Company
at the time of the Companys initial public offering;
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10
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giving the trustee of the Trust Account notice to commence
liquidating the investments constituting the Trust Account
and turning over the proceeds to the Companys transfer
agent for distribution according to the Plan of Liquidation;
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as provided in the Plan of Liquidation, paying, or providing for
the payment of, our known liabilities in accordance with
Delaware law, which liabilities include (i) any existing
liabilities for taxes and to providers of professional and other
services, (ii) expenses of the dissolution and liquidation,
and (iii) our obligations to the public stockholders in
accordance with the Companys certificate of incorporation;
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if there are insufficient assets to satisfy our known and
unknown liabilities, paying all such liabilities according to
their priority and, among claims of equal priority, ratably to
the extent of assets legally available therefor;
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winding up our remaining business activities;
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complying with SEC filing requirements, for so long as we are
required to do so; and
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making tax and other regulatory filings.
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Following dissolution, although it does not currently expect to
do so, our Board of Directors may, at any time, engage third
parties to complete the liquidation pursuant to the Plan of
Liquidation. In addition, although it does not presently
anticipate that it will be necessary to do so since we do not
have any material assets outside the Trust Account, the
Board will be authorized to establish a liquidating trust to
complete the Companys liquidation. The Company intends to
pursue any applicable federal or state tax refunds arising out
of its recently terminated acquisition and its other business
activities from inception through dissolution. To the extent the
Company is successful in obtaining such refunds, the proceeds
will be applied as follows: first, to satisfy the claims against
or obligations of the Company, including claims of various
vendors or other entities that are owed money by us for services
rendered or products sold to us; and second, the remaining
proceeds, if any, will be distributed pro rata to our common
stockholders in accordance with our certificate of
incorporation. Due to the timing and potential uncertainty
regarding any such refunds, any such proceeds would be
distributed subsequent to the distribution of principal and
accumulated interest (net of any income or other tax obligations
relating to the assets in the Trust Account) of the
Trust Account.
At November 30, 2008, we had approximately
$ of cash outside of the
Trust Account and approximately
$ in marketable securities and
cash in the Trust Account. As of November 30, 2008,
the Company had total liabilities of approximately
$ , all of which relate to
liabilities for services rendered or products sold to the
Company. We currently have net liabilities and obligations that
exceed available cash outside the Trust Account by
approximately $ , or approximately
$0. per share. We expect to pay the
Companys liabilities in full or, in some cases, in a
reduced amount agreed to by the relevant creditor(s) pursuant to
negotiations currently in progress. In addition to satisfying
these liabilities, we anticipate incurring additional
professional, legal and accounting fees in connection with the
Companys dissolution and Plan of Liquidation. All cash for
the payment of the liabilities relating to services rendered or
products sold to the Company, beyond any assets of the Company
outside the Trust Account, is expected to be provided by
the initial stockholders. The Company currently has no accrued
and unpaid income or other tax obligations relating to the
income from the assets in the Trust Account.
OUR BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED, AND
UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE
FOR, THE DISSOLUTION AND PLAN OF LIQUIDATION OF THE
COMPANY.
Dissolution under Delaware
Law.
Section 275 of the Delaware General
Corporation Law provides that a corporation may dissolve upon a
majority vote of the board of directors of the corporation
followed by a favorable vote of holders of a majority of the
outstanding stock entitled to vote. Following such approval, the
dissolution is effected by filing a certificate of dissolution
with the Delaware Secretary of State. Once a corporation is
dissolved, its existence is automatically continued for a term
of three years, but solely for the purpose of winding up its
business. The process of winding up includes:
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prosecution and defense of any lawsuits;
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settling and closing of any business;
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11
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disposition and conveyance of any property;
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discharge of any liabilities; and
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distribution of any remaining assets to the stockholders of the
corporation.
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Principal Provisions of the Plan.
Liquidation
is expected to commence as soon as practicable after approval of
the Companys dissolution by stockholders at the special
meeting. We do not anticipate that we will solicit any further
votes of our stockholders with respect to the Plan of
Liquidation. Subject to the payment, or the provision for
payment, of our liabilities, we expect to distribute to our
public stockholders the amounts to which they are entitled under
the Companys certificate of incorporation, consisting of
the amount of the Trust Account at the record date for the
special meeting, less any income or other tax obligations
relating to the income from assets in the Trust Account.
After the first liquidating distribution, if the Company
determines that it has any material assets beyond the amount
distributed, we will make one or more additional liquidating
distributions.
Record Date of Liquidating Distribution.
The
record date for the holders of the Companys common stock
entitled to receive liquidating distributions will be the close
of business on the date of the filing of the certificate of
dissolution of the Company.
Contingency Reserve.
We generally are
required, in connection with our dissolution, to provide for
payment of our liabilities. We intend to pay or provide for
payment of all our known liabilities promptly after approval of
the Plan of Liquidation, and to set aside a contingency reserve,
consisting of the indemnification obligations of the initial
stockholders. We believe that the initial stockholders will
adequately satisfy all of our liabilities. Once we have
established a contingency reserve, we would distribute to
stockholders any portion thereof that our Board deems no longer
to be required, although because of the nature of our limited
assets and liabilities, we do not expect that any such
distributions will be made.
As of November 30, 2008, the Company had accrued and unpaid
liabilities of approximately $ ,
and cash outside the Trust Account of approximately
$ . The Company currently has no
accrued and unpaid income or other tax obligations relating to
the income from the assets in the Trust Account.
The initial stockholders have agreed to indemnify and hold
harmless the Company, on a joint and several basis with all
other initial stockholders the Company against any and all loss,
liability, claims, damage and expense whatsoever to which the
Company may become subject as a result of (i) any claim by
any vendor or service provider who is owed money by the Company
for services rendered or products sold to the Company, or
(ii) any claim by any acquisition target, but in each case
only to the extent (a) such vendor, service provider, or
acquisition target, has not executed a waiver of rights or
claims to the Trust Account, and (b) necessary to
ensure that any such loss, liability, damage or expense does not
reduce the amount of funds in the Trust Account (or, in the
event that such claim arises after the distribution of the
Trust Account, to the extent necessary to ensure that the
Companys public stockholders are not liable for any amount
of such loss, liability, claim, damage or expense). The initial
stockholders indemnification obligations do not apply to
claims under the Companys indemnification of the
underwriters of its initial public offering against certain
liabilities, including liabilities under the Securities Act of
1933. In the event the Companys assets held outside the
Trust Account are insufficient to pay the costs and
expenses of dissolution and liquidation of the Company, the
initial stockholders have agreed to indemnify and hold harmless
the Company, on a joint and several basis with all other initial
stockholders, against any additional costs and expenses of
dissolution and liquidation, except for any special, indirect or
consequential costs or expenses, such as litigation pertaining
to the Companys dissolution and liquidation. The Company
currently has no accrued and unpaid income or other tax
obligations relating to the income from the assets in the
Trust Account.
As of November 30, 2008, the Company had approximately
$ held in the Trust Account.
If a liquidation were to have occurred on such date, the Company
estimates that the entire amount of approximately
$ , or approximately
$ per share, held in the
Trust Account would have been distributed to the public
stockholders.
We will discontinue recording transfers of shares of our common
stock on the date of our dissolution. Thereafter, certificates
representing shares of our common stock will not be assignable
or transferable on our books,
12
except by will, intestate succession or operation of law. After
that date, we will not issue any new stock certificates, except
in connection with such transfers or as replacement certificates.
Our Conduct Following Approval of the Dissolution and
Adoption of the Plan of Liquidation.
Our
directors and officers will not receive any compensation, other
than reimbursement for expenses, for the duties that each
performs in connection with our dissolution or under the Plan of
Liquidation. Following approval of our dissolution by our
stockholders at the special meeting, our activities will be
limited to adopting the Plan of Liquidation, winding up our
affairs, taking such actions as we believe may be necessary,
appropriate or desirable to preserve the value of our assets,
and distributing our assets in accordance with the Plan of
Liquidation.
We will indemnify our officers, directors and agents in
accordance with our certificate of incorporation and bylaws for
actions taken in connection with winding up of our affairs. Our
obligation to indemnify such persons may be satisfied out of our
remaining assets, which we expect will be limited to the
proceeds of the initial stockholders indemnification
obligations. The Board and the trustees of any liquidating trust
may obtain and maintain such insurance as they believe may be
appropriate to cover our indemnification obligations under the
Plan of Liquidation. The Board plans to continue to maintain
directors and officers liability insurance following
the dissolution of the Company
Potential Liability of Stockholders.
Under the
Delaware General Corporation Law, in the event we fail to create
adequate reserves for liabilities, or should such reserves be
insufficient to satisfy the aggregate amount ultimately found
payable in respect of our expenses and liabilities, each
stockholder could be held liable for amounts due to creditors to
the extent of the amounts that such stockholder received from us
and from any liquidating trust under the Plan of Liquidation.
Each stockholders exposure to liability is limited to his,
her or its pro rata portion of the amounts due to creditors and
is capped, in any event, at the amount of the distribution
actually received by such stockholder. In addition, a creditor
could seek an injunction to prevent us from making distributions
under the Plan of Liquidation, which could delay
and/or
diminish distributions to stockholders.
Stock Certificates.
Stockholders should not
forward their stock certificates before receiving instructions
to do so. After such instructions are sent, stockholders of
record must surrender their stock certificates to receive
distributions, pending which their pro rata share of the
Trust Account may be held in trust, without interest and
subject to escheat laws. If a stock certificate has been lost,
stolen or destroyed, the holder may be required to furnish
satisfactory evidence of the loss, theft or destruction,
together with a surety bond or other indemnity, as a condition
to the receipt of any distribution.
Exchange Act Registration.
Our common stock,
warrants and units currently trade on the NYSE Alternext US
(formerly the American Stock Exchange) under the trading symbols
TAQ, TAQ.W and TAQ.U,
respectively. After dissolution, because we will discontinue
recording transfers of our common stock and in view of the
significant costs involved in compliance with reporting
requirements and other laws and regulations applicable to public
companies, the Board intends to apply to terminate the
Companys registration and reporting requirements under the
Securities Exchange Act of 1934. After dissolution, trading in
the common stock on the NYSE Alternext US would terminate.
Liquidating Trusts.
Although the Board does
not believe it will be necessary, we may transfer any of our
remaining assets to one or more liquidating trusts, the purpose
of which would be to serve as a temporary repository for the
trust property prior to its disposition or distribution to our
stockholders. Any liquidating trust would be evidenced by a
trust agreement between the Company and the person(s) the Board
chooses as trustee(s).
Sales of Assets.
The Plan of Liquidation gives
the Board the authority to sell all of our remaining assets,
although the Companys assets outside the
Trust Account are immaterial. Any such sale proceeds may be
reduced by transaction expenses, and may be less for a
particular asset than if we were not in liquidation. We do not
expect any material asset sales to occur.
Absence of Appraisal Rights.
Stockholders are
not entitled to appraisal rights in connection with the
Companys dissolution and Plan of Liquidation.
Regulatory Approvals.
We do not believe that
any material United States federal or state regulatory
requirements must be met or approvals obtained in connection
with our dissolution or the Plan of Liquidation.
13
Treatment of Warrants.
There will be no
distribution from the Trust Account with respect to the
Companys warrants.
Payment of Expenses.
In the discretion of our
Board of Directors, we may pay brokerage, agency, professional
and other fees and expenses to any person in connection with the
implementation of the Plan of Liquidation.
Votes Required and Board
Recommendation.
Approval of the Companys
dissolution and Plan of Liquidation requires the affirmative
vote of a majority of the total number of votes entitled to be
cast by all shares outstanding on the record date. The holders
of common stock will vote on the matter of the approval of the
Companys dissolution and Plan of Liquidation, with each
holder entitled to one vote per share on the matter.
The Board of Directors believes that the Companys
dissolution and Plan of Liquidation are in the best interests of
our stockholders. The Board has unanimously approved the
dissolution and unanimously recommends that our stockholders
vote
FOR
the dissolution and Plan of
Liquidation. Our initial stockholders, including all of our
directors and officers, who hold, as of the record date, an
aggregate of 3,124,997 shares of the Companys common
stock outstanding, have entered into agreements in connection
with our initial public offering pursuant to which they agreed
to vote
FOR
the dissolution and Plan of
Liquidation. See Beneficial Ownership of Securities.
Shares represented by proxy cards received in time for the
special meeting that are properly signed, dated and returned
without specifying choices will be voted
FOR
this proposal and the adjournment proposal.
Certain U.S. Federal Income Tax
Consequences.
The following is a discussion of
material United States federal tax consequences of the Plan of
Liquidation to the Company and to current holders of Company
common stock and warrants issued in our initial public offering.
This discussion assumes that stockholders and warrant holders
are U.S. holders (as defined below), and hold
their Company common stock and warrants as capital assets,
within the meaning of the Internal Revenue Code of 1986, as
amended (the Code). This discussion does not address
all aspects of United States federal taxation that may be
relevant to a particular stockholder or warrant holder in light
of the holders individual investment or tax circumstances.
In addition, this discussion does not address (a) United
States gift or estate tax laws, (b) state, local or
non-U.S. tax
consequences, (c) the special tax rules that may apply to
certain stockholders, including without limitation, banks,
insurance companies, financial institutions, broker-dealers,
taxpayers who have elected mark-to-market accounting, taxpayers
that are subject to the alternative minimum tax, tax-exempt
entities, regulated investment companies, real estate investment
trusts, taxpayers whose functional currency is not the
U.S. dollar, or United States expatriates or former
long-term residents of the United States, (d) the special
tax rules that may apply to a stockholder that acquires, holds,
or disposes of Company securities as part of a straddle, hedge,
constructive sale, or conversion transaction or other integrated
investment, or (e) the special tax rules that may apply
with respect to a stockholder that has acquired Company
securities as compensation or in exchange for the provisions of
services. Additionally, the discussion does not consider the tax
treatment of partnerships (or other entities treated as
partnerships for U.S. federal income tax purposes) or other
pass-through entities or persons who hold Company units, common
stock or warrants through such entities.
This discussion is based on current provisions of the Code,
final, temporary and proposed United States Treasury
Regulations, judicial opinions, and published positions of the
Internal Revenue Service (IRS), all as in effect on
the date hereof and all of which are subject to differing
interpretations or change, possibly with retroactive effect. The
Company has not sought, and will not seek, any ruling from the
IRS or any opinion of counsel with respect to the tax
consequences discussed herein, and there can be no assurance
that the IRS will not take a position contrary to the tax
consequences discussed below or that any position taken by the
IRS would not be sustained.
As used in this discussion, the term
U.S. holder means a person that is a beneficial
owner of Company securities and that is, for United States
federal income tax purposes, (i) an individual citizen or
resident of the United States, (ii) a corporation (or other
entity treated as a corporation for United States federal income
tax purposes) created or organized in the United States or under
the laws of the United States, any state thereof, or the
District of Columbia, (iii) an estate the income of which
is subject to United States federal income taxation regardless
of its source, or (iv) a trust if (A) a court within
the United States is able to exercise primary supervision over
the administration of the trust and one or more
U.S. persons have the authority to control all substantial
decisions of the trust, or (B) it has in effect a valid
election to be treated as a U.S. person.
14
The tax treatment of a partnership and each partner thereof will
generally depend upon the status and activities of the
partnership and such partner. A stockholder or warrant holder
that is treated as a partnership for U.S. federal income
tax purposes should consult its own tax advisor regarding the
U.S. federal income tax considerations applicable to it and
its partners of the purchase, ownership and disposition of our
units, common stock and warrants.
STOCKHOLDERS AND WARRANT HOLDERS ARE URGED TO CONSULT THEIR
OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM IN
CONNECTION WITH OUR DISSOLUTION AND PLAN OF LIQUIDATION,
INCLUDING TAX REPORTING REQUIREMENTS, THE APPLICABILITY AND
EFFECT OF FOREIGN, FEDERAL, STATE, LOCAL AND OTHER APPLICABLE
TAX LAWS AND THE EFFECT OF ANY PROPOSED CHANGES IN THE TAX LAWS.
NON U.S. HOLDERS ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS REGARDING THEIR PARTICULAR TAX CONSEQUENCES.
Consequences
to the Company
The Company may recognize gain or loss on the sale or other
taxable disposition of any of its assets pursuant to its
liquidation to the extent of the difference between the amount
realized on such sale (or the fair market value of the asset)
and its tax basis in such asset.
Consequences
to Stockholders
Gain
or Loss on Liquidation
Amounts received by stockholders pursuant to the liquidation
will be treated as full payment in exchange for their shares of
our common stock. As a result of our liquidation, a stockholder
generally will recognize gain or loss equal to the difference
between (i) the value of cash or other property distributed
to such stockholder (including distributions to any liquidating
trust), less any known liabilities assumed by the stockholder or
to which the distributed property is subject, and (ii) such
stockholders tax basis in the shares of our common stock.
A stockholders gain or loss will be computed on a
per share basis, so that gain or loss is calculated
separately for blocks of stock acquired at different dates or
for different prices. Each liquidation distribution will be
allocated proportionately to each share of stock owned by a
stockholder, and will be applied first to recover a
stockholders tax basis with respect to such share of
stock. Gain will be recognized in connection with a liquidation
distribution allocated to a share of stock only to the extent
that the aggregate value of all liquidation distributions
received by a stockholder with respect to that share exceeds
such stockholders tax basis for that share. Any loss
generally will be recognized only when a stockholder receives
our final distribution to stockholders, and then only if the
aggregate value of the liquidation distributions with respect to
a share of stock is less than the stockholders tax basis
for that share. Any payments by a stockholder in satisfaction of
any Company contingent liability not covered by our contingency
reserve generally would produce a loss in the year paid.
Generally, gain or loss recognized by a stockholder in
connection with our liquidation will be capital gain or loss,
and will be long-term capital gain or loss if the share has been
held for more than one year, and short-term capital gain or loss
if the share has not been held for more than one year. Long-term
capital gain of non-corporate taxpayers may be subject to more
favorable tax rates than ordinary income or short-term capital
gain. The deductibility of capital losses is subject to various
limitations.
Liquidating
Trusts
Although we anticipate that such a transfer is unlikely, if we
transfer assets to a liquidating trust for the benefit of the
stockholders, we intend to structure any such liquidating trust
as a grantor trust of the stockholders, so that stockholders
will be treated for U.S. federal income tax purposes as
first having constructively received their pro rata share of the
property transferred to the trust and then having contributed
such property to the trust. In the event that one or more
liquidating trusts are formed, the stockholders generally will
receive notice of the transfer(s). The amount of the deemed
distribution to the stockholders generally will be reduced by
the amount of any known liabilities assumed by the liquidating
trust or to which the transferred property is subject. A
liquidating trust qualifying as a grantor trust is itself not
subject to U.S. federal income tax. Our former
stockholders, as owners of the liquidating trust, would be
required to take into account for U.S. federal income tax
purposes their respective allocable portions of any future
income, gain or loss recognized by such liquidating trust,
whether or not they have
15
received any actual distributions from the liquidating trust
with which to pay any tax on such tax items. Stockholders would
receive annual statements from the liquidating trust reporting
their respective allocable shares of the various tax items of
the trust.
Back-Up
Withholding
The gross amount of any distribution paid pursuant to the
liquidation to a stockholder that fails to provide the
appropriate certification in accordance with applicable United
States Treasury Regulations generally will be reduced by backup
withholding at the applicable rate (currently 28%).
Back-up
withholding generally will not apply to payments made to some
exempt recipients such as corporations or financial institutions
or to a stockholder who furnishes a correct taxpayer
identification number or provides a certificate of foreign
status and provides certain other required information.
Backup withholding is not an additional tax. Amounts that are
withheld under the backup withholding rules may be refunded or
credited against the stockholders United States federal
income tax liability, if any, provided that certain required
information is furnished to the IRS in a timely manner.
Stockholders should consult their own tax advisors regarding
application of backup withholding in their particular
circumstance and the availability of and procedure for obtaining
an exemption from backup withholding under current United States
Treasury Regulations.
Consequences
to Warrant Holders
Since no distributions will be made to warrant holders pursuant
to the Plan of Liquidation, a holder of our warrants should
recognize a capital loss equal to such warrant holders tax
basis in the warrant in the tax year in which such warrant
becomes worthless (or expires). Because the Company failed to
consummate a business combination, the Company warrants did not
become exercisable and will expire worthless.
THE
ADJOURNMENT PROPOSAL
The adjournment proposal allows the Companys Board of
Directors or its Chairman, in their discretion, to adjourn or
postpone the special meeting for further solicitation of
proxies, if there are not sufficient votes at the originally
scheduled time of the special meeting to approve the dissolution
and Plan of Liquidation proposal.
Consequences if the Adjournment Proposal is Not
Approved.
If an adjournment proposal is presented
at the meeting and is not approved by the stockholders, the
Companys Board of Directors may not be able to adjourn the
special meeting to a later date in the event, based on the
tabulated votes, there are not sufficient votes at the time of
the special meeting to approve the dissolution and Plan of
Liquidation. In such event, the Company will not be able to
dissolve and liquidate.
Required Vote.
Approval of the adjournment
proposal will require the affirmative vote of holders of a
majority of the Companys common stock present or
represented by proxy at the special meeting and entitled to vote
on the proposal.
THE COMPANYS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT OUR STOCKHOLDERS VOTE FOR THE APPROVAL OF THE
ADJOURNMENT PROPOSAL.
INFORMATION
ABOUT THE COMPANY
General.
The Company was incorporated in
Delaware on July 19, 2006 as a blank check company formed
for the purpose of acquiring one or more assets or control of
one or more operating businesses in the technology, media or
telecommunications industries through a merger, capital stock
exchange, stock purchase, asset acquisition or other similar
business combination. A registration statement for the
Companys initial public offering was declared effective on
December 19, 2006. On December 26, 2006, the Company
sold 12,500,000 units in the initial public offering, with
each unit consisting of one share of common stock,
$0.0001 par value per share, and one redeemable common
stock purchase warrant. Each of the Companys units
consists of one share of Companys common stock,
$0.0001 par value per share, and one warrant. Each warrant
sold in the initial public offering entitled the holder to
purchase from the Company one share of common stock at an
exercise price of $5.50 subject to the terms of the
16
warrant agreement. The units began public trading on
December 20, 2006, and the Companys warrants and
common stock have traded separately since January 5, 2007.
The Company received net proceeds of $94,780,000 from the
initial public offering and the sale of warrants to the initial
stockholders in a private placement. The net proceeds of
$94,780,000 (plus an additional $3,720,000 attributable to a
deferred underwriters discount) were been placed in a
Trust Account. To date, the Companys efforts have
been limited to organizational activities, completion of the
Companys initial public offering and the evaluation of
possible business combinations.
Offering Proceeds Held in Trust.
The Company
received net proceeds of $94,780,000 from the Companys
initial public offering consummated on December 26, 2006,
and the sale of warrants to the initial stockholders in a
private placement. The net proceeds of $94,780,000 (plus an
additional $3,720,000 attributable to a deferred
underwriters discount) were placed in the
Trust Account. The initial public offering proceeds held in
the Trust Account were to be used in connection with a
business combination or returned to the Companys public
stockholders if an initial business combination was not
completed within 18 months from the consummation of the
initial public offering, or within 24 months if a letter of
intent, agreement in principle or definitive agreement relating
to a business combination was executed by the Company within
such
18-month
period, all as set forth in the Companys certificate of
incorporation.
Because the Company did not complete a business combination
within the required time frame set forth in the Companys
certificate of incorporation, the Company is presenting the
dissolution and Plan of Liquidation proposal at the special
meeting as more fully set forth in this proxy statement. If such
proposal is approved, the Company will be dissolved and, in
accordance with the Plan of Liquidation, will distribute to all
of its public stockholders, in proportion to their respective
equity interests, an aggregate sum equal to the amount in the
Trust Account, inclusive of any interest, net of any income
or other tax obligations relating to the income from the assets
in the Trust Account. The Companys initial
stockholders, including all of its directors and officers, have
waived their rights to participate in any liquidation
distribution with respect to shares of common stock owned by
them immediately prior to the initial public offering. There
will be no distribution from the Trust Account with respect
to the Companys warrants.
As of November 30, 2008, the Company had approximately
$ held in the Trust Account.
If a liquidation were to have occurred on such date, the Company
estimates that the entire amount of approximately
$ , or approximately
$ per share, held in the
Trust Account would have been distributed to the public
stockholders. However, we cannot assure you that the amount
actually available for distribution will not be reduced, whether
as a result of the claims of additional creditors, the failure
of the initial stockholders to satisfy any required
indemnification obligations, or otherwise.
Facilities.
The Company does not own any real
estate or other physical properties. The Companys
headquarters are located at 747 Third Avenue, 38th Floor,
New York, NY 10017. Under an office administration agreement
between S&B Investment Management Group, LLC, a private
investment firm, and the Company, S&B Investment Management
Group, LLC furnishes the Company with general and administrative
services, including office space, utilities and administrative
support at the facilities in exchange for a payment of $7,500
per month. The Company believes, based on its managements
experience, that the Companys office facilities are
suitable and adequate for the Companys business as it is
presently conducted.
Employees.
The Company currently has three
officers, two of whom are also members of its board of
directors. These individuals are not obligated to devote any
specific number of hours to Company matters and intend to devote
only as much time as they deem necessary to the Companys
affairs. The Company has no employees.
Periodic Reporting and Audited Financial
Statements.
The Company has registered its
securities under the Securities Exchange Act of 1934, and has
reporting obligations, including the requirement to file annual
and quarterly reports with the SEC. The Company has filed, with
the SEC, an Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007 and Amendment
No. 1 to Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007 and Quarterly
Reports on
Form 10-Q
for the fiscal quarters ending March 31, 2008,
June 30, 2008 and September 30, 2008.
Legal Proceedings.
There are no pending legal
proceedings to which the Company is a party.
17
BENEFICIAL
OWNERSHIP OF SECURITIES
As of November 24, 2008, the Companys initial
stockholders, including all of its directors and officers,
beneficially owned and were entitled to vote
3,124,997 shares, or 20%, of the Companys common
stock. The following table sets forth information with respect
to the beneficial ownership of the Companys common stock,
as of November 24, 2008, by its officers, directors and
each person known to the Company to be the beneficial owner of
more than 5% of any class of its voting securities. Unless
otherwise indicated by footnote, the address for each listed
stockholder is
c/o Transforma
Acquisition Group Inc., 747 Third Avenue,
38
th
Floor,
New York, NY 10017.
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Beneficial Ownership
|
|
|
|
of Outstanding
|
|
|
|
Common Stock
|
|
|
|
Number
|
|
|
Percent
|
|
|
|
of Shares
|
|
|
of Class
|
|
|
Name and Address of Beneficial Owner
|
|
|
|
|
|
|
|
|
Larry J. Lenhart
|
|
|
468,750
|
|
|
|
3.00
|
%
|
Daniel L. Burstein(1)
|
|
|
546,875
|
|
|
|
3.50
|
%
|
Samuel L. Schwerin(1)
|
|
|
546,875
|
|
|
|
3.50
|
%
|
Jon Lambert
|
|
|
113,426
|
|
|
|
*
|
|
Ashanti Capital Partners, LLC(2)
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|
|
437,500
|
|
|
|
2.80
|
%
|
John Sculley(3)
|
|
|
437,500
|
|
|
|
2.80
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%
|
Gordon E. Eubanks, Jr.
|
|
|
437,500
|
|
|
|
2.80
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%
|
Dale Kutnick
|
|
|
273,437
|
|
|
|
1.75
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%
|
S&B Investment Management Group, LLC(4)
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|
|
206,885
|
|
|
|
1.32
|
%
|
All current executive officers and directors as a group
(7 persons)
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|
|
3,031,248
|
|
|
|
19.40
|
%
|
All 5% Owners
|
|
|
|
|
|
|
|
|
HBK Investments L.P.(5)
|
|
|
832,500
|
|
|
|
5.33
|
%
|
Fir Tree, Inc.(6)
|
|
|
1,544,300
|
|
|
|
9.88
|
%
|
JANA Partners LLC(7)
|
|
|
1,000,000
|
|
|
|
6.40
|
%
|
Silver Point Capital, L.P.(8)
|
|
|
1,875,000
|
|
|
|
12.00
|
%
|
Jonathan M. Glaser, et al(9)
|
|
|
1,475,000
|
|
|
|
9.44
|
%
|
|
|
|
*
|
|
Less than 1%.
|
|
(1)
|
|
Includes 206,885 shares held by S&B Investment
Management Group, LLC, for which this person shares voting or
investment control.
|
|
(2)
|
|
John Sculley, as the sole member of Ashanti Capital Partners,
LLC, may be deemed to be the beneficial owner of the shares held
by Ashanti Capital Partners, LLC.
|
|
(3)
|
|
Represents shares issued to Ashanti Capital Partners, LLC. See
footnote (2) above.
|
|
(4)
|
|
Daniel L. Burstein and Samuel L. Schwerin, as the members of
S&B Investment Management Group, LLC, may be deemed to be
the beneficial owners of the shares held by S&B Investment
Management Group, LLC.
|
|
(5)
|
|
Derived from a joint filing of a Schedule 13G on
October 15, 2008 by HBK Investments L.P, HBK Services LLC,
HBK New York LLC, HBK Partners II L.P., HBK Management LLC
and HBK Master Fund L.P. reporting shared power to vote or
direct the vote over and shared power to dispose or direct the
disposition of 832,500 shares. The address of the business
office of HBK Investments L.P. is 2101 Cedar Springs Road,
Suite 700, Dallas, TX 75201.
|
|
(6)
|
|
Derived from a joint filing of a Schedule 13G/A on
February 14, 2008 by Fir Tree, Inc., Fir Tree Capital
Opportunity Master Fund, L.P. and Sapling, LLC reporting shared
power to vote or direct the vote over and shared power to
dispose of or direct the disposition of 1,544,300 shares.
The address of the business office of Fir Tree, Inc. is
505 Fifth Avenue,
23
rd
Floor, New York, NY 10017.
|
18
|
|
|
(7)
|
|
Derived from a filing of a Schedule 13G on January 4,
2007 by JANA Partners LLC reporting sole power to vote or direct
the vote over and sole power to dispose of or direct the
disposition of 1,000,000 shares. The address of the
business office for JANA Partners LLC is 200 Park Avenue,
Suite 3300, New York, NY 10166.
|
|
(8)
|
|
Derived from a joint filing of a Schedule 13G on
February 13, 2007 by Silver Point Capital, L.P.,
Mr. Edward A. Mule and Robert J. OShea with respect
to the 1,875,000 shares held by Silver Point Capital Fund,
L.P. and Silver Point Capital Offshore Fund, Ltd., and reporting
shared power to vote or direct the vote over and shared power to
dispose of or direct the disposition of 1,875,000 shares.
The address of the business office for each of these persons is
Two Greenwich Plaza,
1
st
Floor, Greenwich, CT 06830.
|
|
(9)
|
|
Derived from a joint filing of a Schedule 13G/A on
February 14, 2008 by Jonathan M. Glaser and certain related
entities and individuals, reporting shared power to vote or
direct the vote over and shared power to dispose of or direct
the disposition of 1,475,000 shares. The address of the
business office of Mr. Glaser is 11601 Wilshire Boulevard,
Suite 2180, Los Angeles, CA 90025.
|
Beneficial ownership has been determined in accordance with
Rule 13d-3
under the Securities Exchange Act of 1934. Unless otherwise
noted, we believe that all persons named in the table have sole
voting and investment power with respect to all shares of the
Companys common stock beneficially owned by them.
None of our initial stockholders, including all of our directors
and officers, will receive any portion of the liquidation
proceeds with respect to common stock owned by them prior to our
initial public offering.
STOCKHOLDER
PROPOSALS
Whether or not the dissolution is approved, the Company does not
expect to have an annual meeting of stockholders after the
special meeting. Therefore, we are not providing instructions as
to how stockholders can make proposals for future meetings.
DELIVERY
OF DOCUMENTS TO STOCKHOLDERS
Pursuant to the rules of the SEC, the Company and services that
it employs to deliver communications to its stockholders are
permitted to deliver to two or more stockholders sharing the
same address a single copy of the proxy statement. Upon written
or oral request, the Company will deliver a separate copy of the
proxy statement to any stockholder at a shared address who
wishes to receive separate copies of such documents in the
future. Stockholders receiving multiple copies of such documents
may likewise request that the Company deliver single copies of
such documents in the future. Stockholders may notify the
Company of their requests by calling or writing us at 747 Third
Avenue, New York, NY 10017,
(646) 521-7805,
Attn: Larry J. Lenhart, President and Chief Executive Officer.
WHERE YOU
CAN FIND MORE INFORMATION
The Company files reports, proxy statements and other
information with the SEC as required by the Securities Exchange
Act of 1934.
You may read and copy reports, proxy statements and other
information filed by the Company with the SEC at its public
reference room located at 100 F Street, N.E.,
Washington, D.C.
20549-1004.
You may obtain information on the operation of the Public
Reference Room by calling the SEC at
1-800-SEC-0330.
You may also obtain copies of the materials described above at
prescribed rates by writing to the SEC, Public Reference
Section, 100 F Street, N.E., Washington, D.C.
20549-1004.
The Company files its reports, proxy statements and other
information electronically with the SEC. You may access
information on the Company at the SEC web site containing
reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC at
http://www.sec.gov
.
19
Information and statements contained in this proxy statement or
any annex are qualified in all respects by reference to the copy
of the relevant contract or other annex filed as an exhibit to
or incorporated by reference into this document.
This proxy statement incorporates important business and
financial information about the Company that is not included in
or delivered with the document. This information is available
without charge to security holders upon written or oral request.
If you would like such information or additional copies of this
proxy statement, or if you have questions about the Plan of
Liquidation, you should contact:
Larry J. Lenhart
President and Chief Executive Officer
747 Third Avenue
38
th
Floor
New York, NY 10017
(646) 521-7805
20
ANNEX A
PLAN OF
LIQUIDATION
OF
TRANSFORMA ACQUISITION GROUP INC.
(A DISSOLVED DELAWARE CORPORATION)
This Plan of Liquidation (or Plan) of Transforma
Acquisition Group Inc. (the Company) is dated this
[ ] day of December, 2008.
WHEREAS, the dissolution of the Company was duly authorized by
its Board of Directors and stockholders, and the Company was
dissolved on December [ ], 2008 by the filing of
a Certificate of Dissolution with the Office of the Secretary of
State of the State of Delaware;
WHEREAS, the Company elects to adopt a plan of distribution
pursuant to Section 281(b) of the Delaware General
Corporation Law (the DGCL);
WHEREAS, the Company has paid or otherwise satisfied or made
reasonable provision to pay or otherwise satisfy all claims and
obligations of the Company known to the Company, including
conditional, contingent, or unmatured contractual claims known
to the Company, other than the following:
1. Fees and expenses in connection with legal, accounting,
financial advisory and other services rendered prior to the date
hereof, all as shown on the Companys unaudited interim
financial statements at and for the period ending
September 30, 2008, and liabilities and obligations
incurred or to be incurred after such date to vendors or other
persons for services rendered or products sold to the Company
(such as fees and expenses in connection with legal, accounting,
financial and other professional services rendered or to be
rendered in connection with the dissolution and liquidation of
the Company and the
winding-up
of its business and affairs) (collectively, the Vendor
Obligations);
2. Liabilities for federal and state income taxes
(Tax Liabilities); and
3. The Companys obligations to holders of its common
shares issued in its initial public offering (the Public
Stockholders) to distribute the proceeds of the trust
account (IPO Trust) established in connection with
the Companys initial public offering (IPO) in
connection with the dissolution and liquidation of the Company
as provided in the Companys certificate of incorporation
and its IPO prospectus;
WHEREAS, there are no pending actions, suits or proceedings to
which the Company is a party;
WHEREAS, there are no facts known to the Company indicating that
claims that have not been made known to the Company or that have
not arisen are likely to become known to the Company or to arise
within ten years after the date of dissolution; and
WHEREAS, the Companys founders, Larry J. Lenhart, Daniel
L. Burstein, Samuel L. Schwerin, Jon Lambert, John Sculley,
Gordon E. Eubanks, Jr., Dale Kutnick, S&B Investment
Management Group, LLC and Edward Fenster (the Initial
Stockholders) have reaffirmed, and by their adoption of
this Plan such individuals do hereby reaffirm their obligations
to the Company, under and pursuant to that certain Insider
Letter Agreement with the Companys IPO underwriters (the
ILA) entered into in connection with the IPO, to
indemnify the Company, subject to the provisions of the ILA, for
its debts to any vendor for services rendered or products sold
to the Company to the extent necessary to ensure that the
amounts in the IPO Trust will not be reduced (or, in the event
that such vendor claim arises after the distribution of the IPO
Trust, to the extent necessary to ensure that the Companys
former stockholders are not liable for any amount of such loss,
liability, claim, damage or expense), and, in the event that the
Companys assets held outside the IPO Trust are
insufficient to pay the costs and expenses of dissolution and
liquidation of the Company, to indemnify the Company, subject to
the provisions of the ILA, against such additional costs and
expenses of dissolution and liquidation, excluding any special,
indirect or consequential costs or expenses, such as litigation
pertaining to the Companys dissolution and liquidation;
A-1
NOW THEREFORE, the Company adopts the following Plan, which
shall constitute a plan of distribution in accordance with
Section 281(b) of the DGCL:
1.
PAYMENT OF LIABILITIES AND
OBLIGATIONS.
The Company shall, as soon as
practicable following the adoption of this Plan by the Board of
Directors and the Companys stockholders and the filing of
a Certificate of Dissolution of the Company in accordance with
Delaware law, (a) pay in full the Tax Liabilities (which
payments may be made from the IPO Trust) and (b) pay or
provide for the payment in full or in such other amount as shall
be agreed upon by the Company and the relevant creditor as to
each of the Vendor Obligations.
2.
CONTINGENCY RESERVE.
There being no
facts now known to the Company, suggesting that any unknown
claims or obligations of the Company or claims that have not
arisen against the Company exist or might arise, the Company
shall retain the indemnification obligations to the Company
referred to in the sixth recital hereof as provision for any and
all such claims and obligations.
3.
AUTHORITY OF OFFICERS AND
DIRECTORS.
The Board of Directors and the
officers of the Company shall continue in their positions for
the purpose of winding up the affairs of the Company as
contemplated by Delaware law. The Board of Directors may appoint
officers, hire employees and retain independent contractors in
connection with the winding up process, and is authorized to pay
such persons compensation for their services, provided that no
current officer or director of the Company shall receive any
compensation for his services as aforesaid, and that any such
compensation to such other persons shall be fair and reasonable
and consistent with disclosures made to the Companys
stockholders in connection with the adoption of this Plan.
Adoption of this Plan by holders of a majority of the voting
power represented collectively by the outstanding shares of the
Companys common stock shall constitute the approval of the
Companys stockholders of the Board of Directors
authorization of the payment of any such compensation. The
adoption of the Plan by the holders of the Companys common
stock shall constitute full and complete authority for the Board
of Directors and the officers of the Company, without further
stockholder action, to do and perform any and all acts and to
make, execute and deliver any and all agreements, conveyances,
assignments, transfers, certificates and other documents of any
kind and character that the Board of Directors or such officers
deem necessary, appropriate or advisable (i) to dissolve
the Company in accordance with the laws of the State of Delaware
and cause its withdrawal from all jurisdictions in which it is
authorized to do business; (ii) to sell, dispose, convey,
transfer and deliver the assets of the Company; (iii) to
satisfy or provide for the satisfaction of the Companys
obligations in accordance with Section 281(b) of the DGCL;
and (iv) to distribute all of the remaining funds of the
Company to the holders of the Companys common stock in
complete cancellation or redemption of its stock, subject to
Section 9 below.
4.
CONVERSION OF ASSETS INTO CASH OR OTHER DISTRIBUTABLE
FORM.
Subject to approval by the Board of
Directors, the officers, employees and agents of the Company
shall, as promptly as feasible, proceed to collect all sums due
or owing to the Company, to sell and convert into cash any and
all corporate assets and, out of the assets of the Company, to
pay, satisfy and discharge or make adequate provision for the
payment, satisfaction and discharge of all debts and liabilities
of the Company pursuant to Sections 1 and 2 above,
including all expenses of the sale of assets and of the
dissolution and liquidation provided for by this Plan.
5.
RECOVERY OF ASSETS.
In the event that
the Company (or any trustee or receiver for the Company
appointed pursuant to Section 279 of the DGCL) shall
recover any assets or funds belonging to the Company, such funds
shall first be used to satisfy any claims against or obligations
of the Company, and to the extent any assets or funds remain
thereafter, shall be distributed to the stockholders of the
Company in accordance with and subject to the terms of the
Companys certificate of incorporation and the DGCL, and
further subject to such terms and conditions as the Board of
Directors of the Company (or any trustee or receiver for the
Company) may deem appropriate; provided, however, that nothing
herein shall be deemed to preclude the Company (or any trustee
or receiver for the Company) from petitioning any court of
competent jurisdiction for instructions as to the proper
distribution and allocation of any such assets or funds that may
be recovered by or on behalf of the Company.
A-2
6.
PROFESSIONAL FEES AND EXPENSES.
It is
specifically contemplated that the Board of Directors may
authorize the payment of a retainer fee to a law firm or law
firms selected by the Board of Directors for legal fees and
expenses of the Company, including, among other things, to cover
any costs payable pursuant to the indemnification of the
Companys officers or members of the Board of Directors
provided by the Company pursuant to its certificate of
incorporation and bylaws or the DGCL or otherwise, and may
authorize the payment of fees to an accounting firm or firms
selected by the Board of Directors for services rendered to the
Company. In addition, in connection with and for the purpose of
implementing and assuring completion of this Plan, the Company
may, in the sole and absolute discretion of the Board of
Directors, pay any brokerage, agency and other fees and expenses
of persons rendering services to the Company in connection with
the collection, sale, exchange or other disposition of the
Companys property and assets and the implementation of
this Plan.
7.
INDEMNIFICATION.
The Company shall
continue to indemnify its officers, directors, employees and
agents in accordance with its certificate of incorporation and
bylaws and any contractual arrangements, for actions taken in
connection with this Plan and the winding up of the affairs of
the Company. The Board of Directors, in its sole and absolute
discretion, is authorized to obtain and maintain insurance as
may be necessary, appropriate or advisable to cover the
Companys obligations hereunder, including, without
limitation, directors and officers liability
coverage.
8.
LIQUIDATING TRUST.
The Board of
Directors may, but is not required to, establish and distribute
assets of the Company to a liquidating trust, which may be
established by agreement in form and substance determined by the
Board of Directors with one or more trustees selected by the
Board of Directors. In the alternative, the Board of Directors
may petition a Court of competent jurisdiction for the
appointment of one more trustees to conduct the liquidation of
the Company, subject to the supervision of the Court. Whether
appointed by an agreement or by the Court, the trustees shall in
general be authorized to take charge of the Companys
property, and to collect the debts and property due and
belonging to the Company, with power to prosecute and defend, in
the name of the Company or otherwise, all such suits as may be
necessary or proper for the foregoing purposes, and to appoint
agents under them and to do all other acts which might be done
by the Company that may be necessary, appropriate or advisable
for the final settlement of the unfinished business of the
Company.
9.
LIQUIDATING DISTRIBUTIONS.
Liquidating
distributions shall be made from time to time after the adoption
of this Plan to the holders of record, at the close of business
on the date of the filing of the Certificate of Dissolution of
the Company, of outstanding shares of common stock of the
Company. All distributions made from assets in the IPO Trust
shall be made exclusively to the Public Stockholders pro rata in
accordance with the respective number of IPO Shares then held of
record by the Public Stockholders, and any other distributions
(if any) shall be made pro rata in accordance with the
respective number of shares then held of record by all of the
Companys stockholders; provided that, in the case of all
distributions of assets held in the IPO Trust or otherwise, in
the opinion of the Board adequate provision has been made for
the payment, satisfaction and discharge of all known,
unascertained or contingent debts, obligations and liabilities
of the Company (including costs and expenses incurred and
anticipated to be incurred in connection with the complete
liquidation of the Company). All determinations as to the time
for and the amount of liquidating distributions shall be made in
the exercise of the absolute discretion of the Board and in
accordance with Section 281 of the DGCL. As provided in
Section 12 below, distributions made pursuant to this Plan
shall be treated as made in complete liquidation of the Company
within the meaning of the Code and the regulations promulgated
thereunder.
10.
AMENDMENT OR MODIFICATION OF PLAN.
If
for any reason the Board of Directors determines that such
action would be in the best interests of the Company, it may
amend or modify this Plan and all action contemplated
thereunder, notwithstanding stockholder approval of this Plan,
to the extent permitted by the DGCL; provided, however, that the
Company will not amend or modify this Plan under circumstances
that would require additional stockholder approval under the
DGCL
and/or
the federal securities laws without complying with such laws.
A-3
11.
CANCELLATION OF STOCK AND STOCK
CERTIFICATES.
Following the dissolution of the
Company, the Company shall no longer permit or effect transfers
of any of its stock, except by will, intestate succession or
operation of law.
12.
LIQUIDATION UNDER CODE SECTIONS 331 AND
336.
It is intended that this Plan shall be a
plan of complete liquidation of the Company in accordance with
the terms of Sections 331 and 336 of the Internal Revenue
Code of 1986, as amended (the Code). This Plan shall
be deemed to authorize the taking of such action as, in the
opinion of counsel for the Company, may be necessary to conform
with the provisions of said Sections 331 and 336 and the
regulations promulgated thereunder, including, without
limitation, the making of an election under Code
Section 336(e), if applicable.
13.
FILING OF TAX FORMS.
The appropriate
officers of the Company are authorized and directed, within
30 days after the effective date of this Plan, to execute
and file a United States Treasury Form 966 pursuant to
Section 6043 of the Code and such additional forms and
reports with the Internal Revenue Service as may be necessary or
appropriate in connection with this Plan and the carrying out
thereof.
A-4
PROXY TRANSFORMA ACQUISITION GROUP INC. 747 THIRD AVENUE, 38
th
FLOOR
NEW YORK, NY 10017SPECIAL MEETING OF STOCKHOLDERS THIS PROXY IS SOLICITED ON BEHALF
OF THE BOARD OF DIRECTORS OF TRANSFORMA ACQUISITION GROUP INC.The undersigned appoints
Larry J. Lenhart, with full powerto act, as proxy, with the power to appoint a substitute,
and thereby authorizes him to representand to vote, as designated on the reverse
side, all shares of common stock of the Company held ofrecord by the undersigned on
December 1, 2008 at the special meeting of stockholders to be held onDecember 22, 2008,
and any postponement or adjournment thereof.THIS PROXY REVOKES ALL PRIOR PROXIESGIVEN
BY THE UNDERSIGNED.THIS PROXY WILL BE VOTED AS DIRECTED. IF NO DIRECTIONS ARE GIVEN
WITHRESPECT TO A PROPOSAL, THIS PROXY WILL BE VOTED FOR THE PROPOSAL. THE COMPANYS BOARD
OFDIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR EACH OF THE PROPOSALS. FOR AGAINST ABSTAIN1.
TO APPROVE THE DISSOLUTION OF THE COMPANY
o
o
o
AND THE PLAN OF LIQUIDATION IN,
ORSUBSTANTIALLY IN, THE FORM SUBMITTED TOSTOCKHOLDERS AT OR PRIOR TO THE SPECIALMEETING.2.
TO AUTHORIZE THE COMPANYS BOARD OF
o
o
o
DIRECTORS OR ITS CHAIRMAN, IN
THEIRDISCRETION, TO ADJOURN OR POSTPONE THESPECIAL MEETING IF NECESSARY FOR
FURTHERSOLICITATION OF PROXIES IF THERE ARE NOTSUFFICIENT VOTES AT THE ORIGINALLY
SCHEDULEDTIME OF THE SPECIAL MEETING TO APPROVE THEFOREGOING PROPOSAL.MARK HERE FOR
ADDRESS CHANGE AND NOTE BELOW
o
NEW ADDRESS:
PLEASE MARK, DATE AND RETURN
THIS PROXY PROMPTLY. SIGNATURE:
DATE:
Sign exactly as name appears on this
proxy card. If shares are held jointly, each holder shouldsign. Executors, administrators,
trustees, guardians, attorneys and agents should give their fulltitles. If stockholder is
a corporation, sign in full name by an authorized officer.
|
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